In the Matter of the Application For Expungement of the Criminal

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF C.C.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. 61025.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Axelrad and Haas.

Petitioner C.C. appeals the denial of his petition for expungement filed in the Law Division pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.

On October 15, 2003, petitioner entered a guilty plea in Camden County to a one-count accusation charging him with third-degree possession of over fifty grams of marijuana with intent to distribute. N.J.S.A. 2C:35-5b(11). According to the presentence report, petitioner was pulled over after driving his car erratically. The police officer detected a "strong odor of raw and burnt marijuana emanating from the vehicle." During a subsequent search of the car, over 200 grams of marijuana were found, together with seven Ecstasy pills, ten Ritalin pills, a digital scale, a package of plastic sandwich bags, and $300 in cash.

On January 16, 2004, petitioner was sentenced to two years probation and his driver's license was suspended for six months. He was also required to pay mandatory fines and penalties. Petitioner completed his probation on, and paid all outstanding fines and penalties by, January 12, 2006.

On July 23, 2007, petitioner was charged in West Pikeland, Pennsylvania with one count of violating 18 Pa. Cons. Stat. § 5503(a)(4), Disorderly Conduct. He subsequently pled guilty to this offense and, on September 19, 2007, he was assessed a $150 fine and $10 in court costs.

On October 10, 2010, petitioner filed a petition for expungement of his New Jersey conviction. The trial judge denied this petition in a written opinion and order issued on August 24, 2011. The judge found that, because petitioner had two convictions, he was not eligible to have his petition considered under the "early pathway" provisions of N.J.S.A. 2C:52-2a(2). In addition, the judge found that, because petitioner's New Jersey conviction involved a large amount of marijuana, together with other drugs and drug paraphernalia, he was not eligible for expungement as a "young drug offender" under N.J.S.A. 2C:52-5.

Petitioner appeals. He challenges the trial court's findings and urges that the liberal public policy of the "early pathway" amendments to the expungement statute warrants reversal. We disagree.

Expungement is a purely statutory remedy. It is intended to provide relief to "the one-time offender," not to "periodic violators of the law." N.J.S.A. 2C:52-32. For that reason, repetitive offenders are barred from relief under most circumstances.

Prior to 2010, a petitioner could not seek expungement of a conviction until at least ten years had passed since the date the sentence was completed. N.J.S.A. 2C:52-2(a). In 2010, however, the Legislature amended this statute to permit an "early pathway" to expungement in certain cases after five years, if expungement is in the public interest. In re Kollman, 210 N.J. 557, 570-71 (2012). N.J.S.A. 2C:52-2(a)(2) provides that a court may now grant expungement when at least five years has expired from the date of [his or her] conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

Thus, expungement under this "early pathway" provision "requires three things: the passage of five years; no additional convictions; and a finding that expungement is in the public interest." Kollman, supra, 210 N.J. at 571.

Here, five years have passed since petitioner completed his sentence in January 2006. However, petitioner was convicted of disorderly conduct in Pennsylvania in 2007. Out-of-state convictions that would be disorderly persons or petty disorderly offenses if committed in New Jersey must be included in the calculus for statutory expungement eligibility. State v. Ochoa, 314 N.J. Super. 168, 172-73 (App. Div. 1998). Petitioner argues that the trial judge erred by including the Pennsylvania disorderly conduct conviction in the determination of his eligibility for expungement under N.J.S.A. 2C:52-2(a)(2). We disagree.

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [the actor] . . . creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

18 Pa. Cons. Stat. § 5503(b) states: An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if [the actor] persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.

The trial judge found, and we agree, that the language used to describe this offense is "analogous" to that used to describe the New Jersey petty disorderly persons offense of disorderly conduct under N.J.S.A. 2C:33-2. In pertinent part, this statute provides:

A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof [the actor] . . . [e]ngages in fighting or threatening, or in violent or tumultuous behavior; or . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

Thus, the manner in which the offense is described in each statute is virtually identical. Just as significantly, a person who is found guilty of disorderly conduct under 18 Pa. Cons.

Stat. § 5503(a)(4) is subject to a fine of up to $300, 18 Pa. Cons. Stat. § 1101, and up to ninety days in jail. 18 Pa. Cons. Stat. § 1105. In New Jersey, a person found guilty of the petty disorderly persons offense of disorderly conduct faces up to thirty days in jail, N.J.S.A. 2C:43-8, and a $500 fine, N.J.S.A. 2C:43-3d. Thus, the possible maximum penalty for the Pennsylvania conviction actually exceeds that which could be imposed for a conviction under its New Jersey counterpart.

Petitioner argues that his Pennsylvania conviction arose out of a very minor incident involving a disagreement with his girlfriend in a car. Because he was only assessed $160 in fines and penalties, petitioner alleges that his offense was more akin to a municipal ordinance violation than to a petty disorderly persons offense. However, petitioner had the burden of proving by a preponderance of the evidence that he had satisfied the requirements of the expungement statute. In re D.H., 204 N.J. 7, 18 (2010). Yet, he submitted no certifications, court records or any other documentation concerning the factual underpinnings of his conviction or supporting his claim that his Pennsylvania conviction was not the equivalent of a New Jersey petty disorderly persons offense.

Under these circumstances, the trial judge compared the language of the Pennsylvania and New Jersey statutes and the penalties that could be imposed for a violation of same. Ochoa, supra, 314 N.J. Super. at 172-73. The judge properly found that, because the language of the two enactments mirrored each other and imposed similar penalties, petitioner's Pennsylvania disorderly conduct conviction was the equivalent of a petty disorderly offense under New Jersey law. Because petitioner had multiple convictions, he was not eligible for expungement of his New Jersey conviction under the "early pathway" provisions of N.J.S.A. 2C:52-2(a)(2) and his petition was therefore correctly denied.*fn1

The trial judge also correctly found that petitioner was not eligible for expungement of his New Jersey conviction under the "young drug offender" provisions of N.J.S.A. 2C:52-5. In pertinent part, this statute states that after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of . . . possession or use of a controlled dangerous substance . . . and who, at the time of the offense was 21 years of age or younger, may apply to the Superior Court . . . for the expungement of such person's conviction and all records pertaining thereto.

However, the statute goes on to provide that expungement is not permitted "to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with intent to sell any controlled dangerous substance except . . . [m]arijuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less."

Petitioner was under twenty-one years of age at the time of his New Jersey conviction and more than one year has passed since he completed his probationary sentence. However, petitioner was convicted of possessing over fifty grams of marijuana with the intent to distribute. At the time of his arrest, petitioner had over 200 grams of marijuana in his possession, together with a scale and plastic sandwich bags, Ecstasy and Ritalin. The marijuana was separately packaged in the plastic bags. At oral argument on his expungement petition, he conceded, through counsel, that there was "an extraordinary amount" of drugs, "but they pertained to his drug problem and financing same and the activity he was engaged in." Because he was convicted of possessing a large amount of marijuana with the clear intent to distribute it, petitioner was not eligible for expungement under the "young drug offender" provisions of N.J.S.A. 2C:52-5.

Affirmed.

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